Monday, 8 April 2013

On the weekend I was attending the Surrogacy Australia conference in Melbourne both as a presenter and attendee when I was approached by a fellow attendee. I'll call him Rob. What he told me was extraordinarily humbling. Rob said that he had been following this blog for several years and that it had helped inspire him to study law. Rob was now almost completed his studies and looking to go out into the big wide world of legal practice.

It is the law of unintended consequences, I suppose. I had written the blog to provide information to LGBTI people about legal issues, and from that education process hopefully I might get more clients. What I have found over the years instead is that the blog has also been relied upon by those seeking to change the world for the better, or going to a conference and introducing myself to a judge, for him to say: "You're the lawyer who blogs, aren't you?" Gulp- yes, your honour.

The blog also led to me often being interviewed by the media about gay legal issues, most often recently about surrogacy. In addition I have been told that the blog has helped inspire others to study law, to consider a career in family law or to be a legal volunteer. I don't know how I inspire others, but I believe in honour, courage, integrity and equality for all of us. I hope that most of us have the same beliefs.I believe that despite the daily dross it is a privilege to practise law. It is a calling first, business second, not the other way around.

What is much more inspiring to me and truly humbling in every way is that some little germ of information from me has caused others to try hard, harder than they have ever done, and achieved much more than they might ever have done or dreamt of doing.

Thank you Rob for your kind, kind words. I wish you well on your personal and professional voyages. You will go far, I have no doubt.

We
have now had almost three years of practice under the Surrogacy Act 2010 (Qld), which commenced on 1 June 2010.It is now possible to reflect on the impact
of the legislation in practice, as opposed to theory.

Brief overview

The
Surrogacy Act outlaws commercial
surrogacy in Queensland and by those ordinarily resident in Queensland anywhere
else, including overseas.In this
respect it is no different to its predecessor the Surrogate Parenthood Act 1988 (Qld).

However,
the Surrogacy Act for the first time
enables the legalisation and regulation of altruistic surrogacy.

Despite
the difficulties that there are under the Queensland legislation, it is in
several respects probably the cheapest to the parties, quickest and most
flexible legislation in Australia.

There
isn’t a requirement in Queensland to have written surrogacy arrangements.However, it is advisable to obtain them
because without them it is not possible to obtain a parentage order and, is
likely, it is not possible to obtain treatment.

Comparison with interstate

There
are currently four models of surrogacy regulation in Australia.

Model 1: No laws

The
Northern Territory has no laws concerning surrogacy.Therefore, surrogacy by default is
legal.This means that in theory
commercial surrogacy is also legal in the Northern Territory.However, in practice the only form of
surrogacy that can be accessed is traditional surrogacy[2]
which can either be commercial or altruistic.Commercial surrogacy through an IVF clinic is not able to be
accessed.There is only one IVF clinic
in the Northern Territory.It is bound
by licensing requirements that apply to all IVF clinics in Australia that mean
that it cannot provide commercial surrogacy.

That
clinic has also advised the writer[3]
that it will not provide altruistic surrogacy services because the failure of
the Northern Territory to have any laws about surrogacy means that a parentage
order cannot be made.Without a
parentage order, the birth records cannot be altered with the result that
intended parents may never be recognised as the parents of their child.

Out
of necessity, intended parents from the Northern Territory have to move interstate
or access commercial surrogacy overseas.

Model 2: The Light Hand of
Regulation

This
is the model that exists currently in Queensland, New South Wales, South
Australia and the ACT.In essence it
requires that the parties undertake counselling and obtain legal advice before
entering into a written surrogacy arrangement (although a written surrogacy
arrangement is not strictly required in the ACT) before then applying to the
court after the birth of the child for a parentage order, with independent evidence
being obtained through a process similar to a family report to say that the
proposed order is in the best interests of the child.

The
model in each jurisdiction has its own quirks and there are key differences
between each of the States which are at times perplexing and frustrating.

Model 3: The Heavy Handed
Method of Regulation

This
is the model in Victoria and Western Australia.In addition to their being counselling and legal advice, there is also a
requirement before treatment commences for approval to be obtained from the
State regulator.The complaint that is
often made is that the process in both Western Australia and Victoria is slow,
costly and bureaucratic.

Recently
when Tasmania was considering its surrogacy laws, the Tasmanian Attorney-
General specifically rejected the approach in Western Australia because in four
years of operation only 6 surrogacies had proceeded, this being attributed in
effect to the model of regulation adopted.

Model 4: Prohibition -
Tasmania

Currently
all forms of surrogacy are prohibited in Tasmania.The Tasmanian Parliament has passed the Surrogacy Act 2012, but at the time of
preparation of this paper that legislation had not commenced.If and when that legislation commences the
model is very similar to that in Queensland, New South Wales and the ACT.

Requirements for obtaining
a parentage order in Queensland

There
are 9 legislative requirements under the Surrogacy Act:

1.The application for a parentage order
ordinarily ought to be made not less than 28 days and not more than 6 months
after the child’s birth[4].

2.On the date of filing the application,
the child must have lived with the applicant or applicants for at least 28
consecutive days[5].

3.At the time of filing the child was
residing with the applicant or applicants[6].

4.At the time of hearing the child is
residing with the applicant or applicants[7].

5.The applicant or applicants have made the
application jointly, being a couple[8].

6.There is evidence of a medical or social
need for the surrogacy arrangement[9].

7.The surrogacy arrangement was made after the
parties obtained independent legal advice about the surrogacy arrangement and
its implications[10].

8.The surrogacy arrangement was made after
each of the parties obtained counselling from an appropriately qualified
counsellor about the surrogacy arrangement and its social and psychological
implications[11].

9.The surrogacy arrangement was made with
the consent of the birth mother, the birth mother’s spouse and the applicant or
applicants[12].

10.The surrogacy arrangement was made before
the child was conceived[13].

11.The surrogacy arrangement is in writing
and signed by the birth mother, the birth mother’s spouse and the applicant[14].

12.The surrogacy arrangement is not a
commercial surrogacy arrangement[15].

13.The birth mother and the birth mother’s
spouse were at least 25 years when the surrogacy arrangement was made[16].

14.The applicant or applicants were when the
surrogacy arrangement was made at least 25 years[17].

15.At the time of hearing of the application
the applicant or applicants are resident in Queensland[18].

16.All parties consent to the making of the
parentage order at the time of the hearing[19].

17.The surrogacy guidance report under
section 32 supports the making of the proposed order[20].

18.The proposed order will be for the
wellbeing, and in the best interests of the child[21].

Case Law under the Surrogacy Act

There have been
three significant cases decided since the Surrogacy
Act came in to effect.

BLH & HN v SJW and NW [2010] QDC439

This was the
first case decided under the Surrogacy
Act.It concerns a pre-commencement,
altruistic, traditional surrogacy arrangement.Judge Irwin made a parentage order in favour of a gay couple.As was later publicised by the Courier Mail
the relationship with the surrogate became strained. Subsequently I understand that a parenting
plan was entered into with the surrogate for her to spend time with the child.

Although the
parties received counselling about the proposed surrogacy arrangement, in my
view there are some lessons that can be learnt from that surrogacy arrangement:

·As
the arrangement was entered into when surrogacy was illegal, none of the
parties obtained legal advice.In my
view, one of the most important parts of the process under the Surrogacy Act is for parties to receive good
legal advice from a practitioner who knows what they’re doing as Ryan J held in
Ellison and Karnchanit [2012]
FamCa602[22]:

“There are many and varied
paths to parenthood.Where the path
involves international surrogacy arrangement, it is long and difficult.As this case demonstrates, the commissioning
parents’ goal of the safe arrival of a longed for child often results in them
overlooking or underestimating the legal issues involved.From the children’s perspective at least, in
the pursuit of parenthood, it is important that commissioning parents and those
who assist them give proper regard to ensuring that parental status is possible
once the children are born.”

·There
was no written surrogacy arrangement until after the pregnancy was
underway.The Surrogacy Act is quite clear that the surrogacy arrangement must be
signed before the child was
conceived.This is an important
protection so as to ensure that the surrogate is able to make a decision
without being already pregnant and therefore feeling compelled to sign.

It is essential that the surrogacy
arrangement is in writing and that although it is not legally binding except as
to the payment of money (within the limits prescribed by the legislation) that
as much as possible of the agreed deal is put in writing.The people entering into a surrogacy
arrangement aren’t contemplating litigation.They are embarking on a grand voyage of love, to create a baby.Nevertheless lawyers are involved and a legal
process. By putting as much in writing as possible there is as much clarity as
there possibly can be in case anything goes wrong.

LWV v LMH [2012] QChc 26

This was a case
before Judge Clare SC and her Honour had to determine what “conceived” meant
within section 22(2)(e)(iv).

It is common with
IVF clinics to use frozen embryos.Often
the embryos will have been created through a process when the couple were
seeking to become pregnant.Pregnancy
was not successful and the embryos have remained frozen ever since then to be
utilised in the subsequent surrogacy arrangement.

The issue that
her Honour had to decide was whether conception was at the time of
fertilisation (in which case if a frozen embryo were used in those
circumstances a court order could not be made) or at the time of implantation
or pregnancy.

In a world first
precedent, her Honour decided that conception was at pregnancy.Her Honour held:

“The
meaning of the term “conceived” as used in s 22(2) (e) (iv) [of the Surrogacy
Act] is critical to the court’s jurisdiction in this case.This is because the embryo was created years
before the surrogacy arrangement, then frozen and not implanted in the uterus
until months after the written arrangement was settled.The question now is whether the reference to
pre conception as the cut-off point in s 22(2)(e)(iv) means before the creation
of the embryo or simply any time before the transformation of the embryo into a
pregnancy.If it were an earlier point
in time, the court would have no power to make a parentage order for [the
child].

What
does “conceived” mean?

The act offers no definition.It seems this is the first time a court has
been asked to interpret s22 (2) (e) (iv).Nonetheless, the answer seems obvious.Whatever approach to statutory interpretation is applied, whether it be
to view “conceive” as a technical term, or it its everyday meaning, or the
meaning that best advances the purposes of the Act, the result is the
same.The point of conceiving a child is
the commencement of the pregnancy, which involves an active process within a
woman’s body.

The
everyday meaning

The phrase “conceived a child” is in
common usage.It is commonly understood
to refer to an actual pregnancy.

One must examine the context of the
provision[1].This is a provision about
surrogacy.As expressed in s.5, the
purpose of the Act is to safeguard the interests of the child and regulate
surrogacy agreements.There is an
underlying intention to protect the birth mother from duress to surrender her
child.Such issues only emerge after a
pregnancy occurs.The Act applies to all
forms of conception.The use of in vitro
fertilisation is now widespread.In my
experience when lay people talk about IVF treatments they tend to reserve the
term “conceive” for the circumstance where an embryo actually takes to the
uterus and the woman succeeds in becoming pregnant as distinct from the
procedure of implantation.I am
satisfied that in the ordinary everyday language of the community, the term
“conceive a child” means more than what can be achieved in a test tube and
refers to the commencement of a pregnancy in a woman’s body.This is consistent with the current editions
of both the Oxford English dictionary and the Macquarie Dictionary.They define “conceive” as, inter alia. “to
become pregnant”.The former publication
also defines “conceived”, the adjective, as “brought into embryonic existence
in the womb”.

To construe the cut-off point in s 22 (2)
(e) (IV) as the point of pregnancy (and therefore after fertilisation) is also
consistent with the definition of “surrogacy arrangement” in s 7 of the Act.

The (intended mother’s) eggs were
fertilised and preserved before she underwent the emergency procedure that
saved her life but left her unable to carry her own children.This was before the Surrogacy Act had come
into existence.It was therefore
impossible for her to enter into an arrangement under the Act before the
embryos were created.The same situation
is readily foreseeable for any woman undergoing emergency procedures even after
the commencement of the Act.A woman
desirous of having a baby, would little hope of securing a compliant surrogacy
arrangement in advance of an emergency hysterectomy, given the requirements for
the identification of a willing surrogate, proper counselling and legal advice
with time to reflect on all of the implications.The Act is intended to help such people in
genuine need of surrogacy.

Therefore to interpret the preconception
condition as a condition to be satisfied before fertilisation would not only be
contrary to the ordinary language of the provisions, it would frustrate the
underlying intention of the Act.There
is no reason to reach beyond the common language for the interpretation of s 22
(2) (e) (iv).

The
expert evidence

The Court has an affidavit from Dr Nasser
an obstetrician and gynaecologist involved in the case, as well as various
definitions from medical dictionaries.Of course the construction of the statute is a matter for the court, not
doctors, but the expert evidence of the biological processes is relevant to
that task.According to Dr Nasser:

“The creation of the embryos in 2008 was
an act of fertilization.Fertilization
is a step on the path way to conception.Many eggs fertilize but many fewer pregnancies are conceived.The act of conception or the act of
conceiving the pregnancy was the actual embryo transfer and the subsequent
implantation of that embryo into the uterus of [the birth mother] over the next
couple of days with the eventual positive pregnancy test approximately two
weeks after …July 2011… The act of conceiving in this case is viewed as the act
of achieving a pregnancy.Therefore, I
view the conception of [the child] as occurring from the embryo transfer on …
July 2011.”

Dr Nasser’s professional distinction
between the processes of fertilisation and conception is consistent with the
common understanding of what it means to conceive a child.The same can be said of the preponderance of
definitions from the medical dictionaries cited.

Despite extensive research, the parties
have found only one case in which the meaning of conception was
considered.This is the English case of
R (John Smeaton on behalf of the Society for the Protection of Unborn children)
v the Secretary of State for Health.[2]It was about the morning after pill and therefore considered conception
through sexual intercourse rather than scientific intervention.”

Since that
decision by her Honour, the following Children’s Court Judges have also made
parentage orders when frozen embryos were used:

·Judge
Everson

·Judge
Dick SC

·Judge
Devereaux SC

P and P
(unreported) [2012]

This is an
unreported decision by Judge Dick SC. It concerned three issues:

1.Who was a “couple”?

2.The requirement for filing material;

3.What constituted counselling.

The Facts

Mr and Mrs P
wanted to have children.Unfortunately
due to a medical condition, Mrs P was unable to have children and a surrogate
was required.Mr and Mrs P resided with
her brother and her parents.

Mrs P senior
offered to be the surrogate for her daughter and son in law.The offer was accepted.All four parties then underwent 6 or 7 hours
in total of counselling and obtained the requisite independent legal advice.

The counsellor,
who disapproved of the surrogacy arrangement (as Mrs P had motor neurone
disease) completed the initial counselling and then required the parties to
attend more counselling upon her after they obtained the legal advice required
for the Surrogacy Act.The parties did not proceed with further
counselling with that counsellor.

Just before they
were to sign the surrogacy arrangement, Mr P decided that he didn’t want to
have a child, nor have a marriage and told his wife that the was then going
home to mother, and promptly did so.The
marriage had broken down.It was a final
separation.

At that time, Mrs
P senior was 50.The immediate problem
facing Mr and Mrs P senior and Mrs P was Mrs P still wanted to become a parent
and her mother still wanted to be her surrogate.They had two options available to them:

a.Proceed with a surrogacy arrangement and
thereby obtain treatment from a doctor, but with the possibility that a
parentage order would not be made because Mrs P would be doing so alone when
she was part of a “couple”; or

b.Wait 16 months until Mrs P was divorced
from Mr P and then as a single applicant proceed with the surrogacy arrangement
with her parents.The risk in doing that
was that the mother may not be able to become pregnant, given her age.

Not surprisingly,
Mrs P and her parents decided to proceed immediately with the surrogacy
arrangement.There was a delay in
proceeding, however.Because Mr P was no
longer to be the father, a sperm donor was required.This necessitated donor counselling being
undertaken by Mrs P and her parents.

Mrs P and her
parents sought that the initial counsellor undertake that counselling. She
refused.Not only did that counsellor
disapprove of the surrogacy arrangement, but she also disapproved that Mrs P
and her parents had the temerity to choose to go to another IVF clinic.

In the
applications section 25 sets out that the following documents must be produced to the court:

1.A
copy of the child’s birth certificate;

2.A
copy of the surrogacy arrangement[typically it will be exhibited to one of the solicitors affidavits];

3.An
affidavit sworn by the applicant or joint applicants [typically separate affidavits
will be obtained].

4.An
affidavit sworn by the birth mother;

5.An
affidavit sworn by the birth mother’s spouse;

6.An
affidavit sworn by another birth parent;

7.An
affidavit by the lawyer who gave the independent legal advice before the surrogacy arrangement was made
to the applicant or each joint applicant.

8.An
affidavit by the lawyer who gave independent legal advice to the birth mother and the
birth mother’s spouse;

11.An
affidavit from an appropriately qualified medical practitioner verifying a report prepared by the
medical practitioner as to why the applicant is an eligible woman.

There is also a
requirement in the evidence although not set out in section 25 to prove the
date of conception and in my view that is best obtained by the medical
specialist who can swear as to when conception occurred. It is also practice to
ensure that a brief affidavit by the applicants is filed by leave setting out
that they still care for the child and that they live in Queensland.

Difficulty with filing in P and P

All the material
was filed save one document. That document was the affidavit of the initial
counsellor.She did all in her power to
ensure that she not swear an affidavit as she strongly disapproved of the
surrogacy arrangement.She discounted
the idea that the surrogacy arrangement was appropriate even though the
surrogacy guidance report indicated that the proposed arrangement was in the
best interests of the child.

It ought to be
noted that if an order were not made then because Mrs P senior was the
surrogate, then Mrs P senior and Mr P senior were the birth parents and
therefore the parents as a matter of law before any parentage order was
made.This meant that on the birth
certificate the child’s genetic mother, the applicant, Mrs P and her brother
were the siblings of the child.

Nevertheless when
the matter came to court the counsellor had not sworn her affidavit and was
obdurate that she would not do so.

Preliminary Ruling

Her Honour was of
the view that the intention of Parliament in Section 25 was clear: “must” means “must” and that without an affidavit of the counsellor, an order
could not be made.

Her Honour’s solution with the counsellor

Her Honour
adjourned the matter for two weeks to enable a subpoena to issue.Her Honour suggested that an affidavit be
supplied to the counsellor along with a covering letter at the time that the
subpoena was served suggesting that the counsellor swear the affidavit in
preference to having to appear on the subpoena and that if she swore the
affidavit then she would not be required to attend.Her Honour also indicated that in her view
the counsellor breached her fundamental duties to her clients and that if the
counsellor gave evidence under subpoena (which would still not have complied
with the legislation) then her Honour would have reported the counsellor to a
professional association.

This information
was passed onto the counsellor.No doubt
if the counsellor had been brought to court pursuant to the subpoena she would
have been asked to swear an affidavit and if she had then refused she may well
have been in contempt, with consequences that flow from that.

The counsellor’s response

The counsellor eventually
swore her affidavit, but added to it that counselling was incomplete.

The ruling about counselling

Her Honour ruled
that counselling for the purposes of section 22(2)(e)(ii) which provides:

“Was
made after each of the birth mother, the birth mother’s spouse (if any) and the
applicant, joint applicants,
obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and social and
psychological implications”

meant that
counselling did not need to be completed
but merely needed to have occurred, the
counselling had in this case occurred
and there was there was therefore sufficient compliance with the legislation.

Couple

Section 21 sub
paragraphs (3) - (16) provide:

“(3)
Subsections (4) and (5) apply if there are 2 intended parents under the
surrogacy arrangement and the 2
intended parents were a couple when the surrogacy arrangement was made.

(4) The
application for the parentage order may be made only by the 2 intended parents jointly.

(5) if the
2 intended parents are no longer a couple or one of them has died, one of the intended parents may apply for a parentage
order.

(6) If
there is 1 intended parent under the surrogacy arrangement and the intended parent did not have a spouse when the
surrogacy arrangement was made, the intended
parent may apply for a parentage order.”

What was
significant about subsection (3) in the context of the marriage of Mr and Mrs P
was that there was only one intended parent under the surrogacy arrangement,
namely Mrs P, not two and that at the time the surrogacy arrangement was made
Mr and Mrs P were legally a “couple”.In the middle of subsection (3) is the
word “and” it was submitted to her
Honour that Parliament intended that subsections (4) and (5) only applied if both requirements of subsection (3)
applied, namely that there were two intended parents under the surrogacy
arrangement and they were a couple
when the surrogacy arrangement was made.In the case of Mrs P only one of those requirements were met, namely
that Mr and Mrs P were a couple.The
other requirement that there were two intended parents under the surrogacy
arrangement was not met, as only Mrs P was the intended parent.It was submitted therefore that subsections
(4) and (5) did not apply.It was also
submitted that within subsection (5) there was empowerment to Mrs P because of
the word “may”.

It was submitted
that there was difficulty because of subsection (6) namely if there is one
intended parent under the surrogacy arrangement “and the intended parent did not have a spouse when the surrogacy
arrangement was made, the intended parent may apply for a parentage order.”One way of reading that was to say Mrs P if
she were single could apply for a parentage order.

“In
an Act – spouse includes de facto partner and registered partner”.

Furthermore
section 9(1) contains a note:

“Parentage
of a child born as a result of a surrogacy arrangement may only be transferred on 1intended parent who is
single or 2 intended parents who are a couple -
see section 22(2)(c).”

By virtue of
section 14(2) Acts Interpretation Act
1954 (Qld) that form of note was deemed to be part of the Act.

Her Honour’s
attention was drawn to the second reading speech in which the then Attorney-
General, the Honourable Cameron Dick said:

“The
law, where it grants freedom, should not grant these freedoms to one class of persons and deny them to others.If altruistic surrogacy is decriminalised, it
should be decriminalised for all
citizens… governments and parliaments should not involve themselves in the picking and choosing of who
can have children and who cannot.History shows that political leaders
are ill suited to such tasks…. To the contrary, the government believes that children should be raised by
parents – any parents – who can
best love them and best provide for them and best give to them all the opportunities that life may present.The quality and capacity of a parent should
be judged by their actions, not
by their name, their gender, by their race, their marital status, not their sexual orientation…
we need to ensure that children are treated the same regardless of their birth parents…. Children that are
born as the result of an altruistic
surrogacy arrangement deserve to be treated at law the same as all other Queensland children and should not be
disadvantaged because of who their parents are…
this bill is about ensuring the best interests of all Queensland children and ensuring that in law it is about ensuring
that the legal status of all children is the same
no matter what the circumstances of their birth or parentage.”

It was submitted
that if Mr and Mrs P were a “couple”
then there was the ability to dispense with the requirement.Section 23(2) allows some of the provisions
in section 22(2) to be dispensed with but only if the court is satisfied that:

a.There are exceptional circumstances for
giving dispensations; and

b.The dispensation will be for the
well-being and the best interests of the child.

Exceptional circumstances

It was submitted
that the circumstances were “unusual or
out of the ordinary”.It was
submitted the unusual circumstance was very simple – given Mrs P senior’s age
there was risk that in common parlance that her body clock did not have long to
run – that if the surrogacy did not proceed then and there, as opposed to
waiting 15 or 16 months for divorce, a child may never have been conceived and
born.

The other special
circumstance it was submitted was that the child was as a matter of law the
sister ofMrs P’s and Mrs P’s brother’s
as opposed to their daughter and niece respectively.

Wellbeing, and in the best interests of
the child

It was submitted
that as the dispensation would allow the making of a parentage order, and that
the evidence showed that the making of the parentage order is for the wellbeing
and best interests of the child, that therefore the dispensation will be for
the wellbeing and best interests of the child.It was submitted that the court could also rely upon the evidence as to
the advantages to the child of having an order made, as opposed to the
disadvantages to the child if an order were not made.

Mr and Mrs P were not a couple

Her Honour
commented on the first occasion that she accepted the thrust of the submissions
and that there was in fact a different outcome if Mr and Mrs P had been in a de
facto relationship as opposed to a marriage.She was of the view that Parliament did not intend for a marriage that
had broken down, such as for 30 years, that therefore a single applicant could
not proceed with her surrogacy.

In her ruling her
Honour accepted the thrust of the submission and found that by virtue of the
parties having separated that Mr and Mrs P were not at the time of signing the
surrogacy arrangement a “couple” but
that if she were wrong about that then she would dispense with the matter there
being special circumstances being:

a.The age of Mrs P senior at the time of
the signing of the surrogacy arrangement having regard to the likelihood of
having a child or not and,

b.That she considered the making of the
order was for the wellbeing and in the best interests of the child.

Family Court Cases

In 2010 – 2011
there were a series of cases decided in the Family Court concerning overseas
surrogacy almost invariably from Thailand.

Of greatest
significance were four cases decided by Justice Watts on 30 June 2011.[23]

In those
decisions His Honour was called upon to make parenting orders in favour of the
intended parents who had had children born in Thailand by surrogacy. In all
cases, the intended parents appeared to have engaged in commercial surrogacy.
In each of the four cases they were seeking to show that the intended (and
genetic) father was the parent as a matter of law. In two of the cases, his
Honour referred to the matter to the Queensland Director of Public Prosecutions
for possible prosecution.My understanding
is that neither of the couples ultimately was prosecuted.In all four cases his Honour questioned
whether the intended father would, as a matter of law, be a parent of the
child.

His Honour
questioned two matters:

a)If
the parties have engaged in an illegal act then the law does not reward those
who engage in illegal acts and it is open to question as to whether the law
would recognise the particular individual as the father;

b)Following
various statutory presumptions under the Status
of Children Act in New South Wales (and there is equivalent legislation
across the country) being legislation designed for donor arrangements, it may
be that the intended parents are not the parents of the child.

A different
approach was taken in a test case, also involving a Queensland couple who
appeared to have engaged in commercial surrogacy in Thailand.

The children were
conceived from sperm of Mr Ellison and an egg from an anonymous egg donor;carried by a Thai surrogate who in turn was
living with a man.Mr Ellison and the surrogate
were shown on the Thai birth certificate as the parents.

Her Honour made
parenting orders in favour of Mr Ellison and Ms Solano.

Two of the key
features in the case were:

·Unusually for one of these cases, Justice Ryan
appointed an Independent Children’s Lawyer, and also obtained the intervention
of the Human Rights Commission.

·A lack of evidence from the intended parents, so
that initially at least there was no evidence of the nature of the surrogacy
arrangement, nor knowledge that the surrogate was in a relationship.It had been assumed that the surrogate was
single.As it turns out, the surrogate
had not been living with the man at the time of the child being conceived, a
critical point.

Her Honour
stated:

“(W) hen the hearing started there was a
paucity of evidence presented by the applicants in support of their
application.For example the Court did
not have certified copies of the children’s original birth certificates.No evidence was adduced from the clinic in
relation to their conception or the hospital in relation to their birth.The surrogacy agreement with the birth mother
was not in evidence and neither she nor the children’s biological mother was
informed about this hearing.Although
the Court requested the applicant’s adduced expert evidence in relation to the
law in Thailand, this was not forthcoming.In short, the evidence was so poor it was difficult to see how the
applicants’ unchallenged evidence provided an evidentiary foundation for the
orders they sought.”

Justice Ryan set
out guidelines as to how future international surrogacy cases are to be run in
the Family Court:

1)An
Independent Children’s Lawyer is appointed to represent the child’s best
interests;

2)Affidavit
evidence of the applicants and the birth mother is to be obtained comprising:

·Their personal circumstances, in particular the
circumstances at the time the procedure took place;

·The circumstances leading up to the surrogacy
arrangement and of the procedure itself;

·The circumstances after the birth of the child
and subsequent arrangements for the care of the child;

·Independent evidence regarding the
identification of the child including:

-The surrogacy contract / agreement entered into
between the person seeking the parenting orders and the clinic and / or
surrogate mother;

-A certified copy of the child’s birth certificate,
and, if not in English, a translation accompanied by an affidavit of the person
making the translation verifying it is the correct translation and setting out
the translator’s full name, address and qualifications;

-Parentage testing in accordance with the Family Law Regulations to ascertain
whether that child is the biological child of the person /s seeking the
parenting order;

-Evidence of Australian citizenship of the child
if citizenship has been granted.

·Independent evidence with respect to the surrogate
birth mother.This may be obtained by a
family consultant or an independent lawyer, including:

1)Confirmation that legal advice and counselling
were provided to the surrogate mother prior to entering into the surrogacy
arrangement;

2)Confirmation that the surrogacy arrangement was
entered into before the child was conceived;

3)Confirmation that the surrogacy arrangement was
made with the informed consent of surrogate mother;

4)Evidence after the birth of the child or the
surrogate’s mother’s views about the orders sought and what relationship, if
any, she proposes with the child;

5)If the child has been granted a visa to enter
Australia, evidence of participation by the surrogate mother in an interview
with immigration officials prior to the grant of the visa, and the views
expressed by her during this interview;

6)The preparation of a family report which
addresses:

a.The
nature of the child’s relationship with the person seeking parenting orders;

b.The
effect on the child of changing their circumstances;

c.An
assessment of the person seeking the parenting orders’ capacity and commitment
to the long-term welfare of the child;

d.The
person seeking the parenting orders’ capacity to promote the child’s connection
to their country of birth’s culture including but not limited to their birth
mother;

e.Advice
in relation to the issues which may arise concerning the child’s identity and
how those issues are best managed;

f.The views of the birth mother, in particular her
consent to the proposed parenting orders, and other matters with respect to the
birth mother referred to above

7)Other evidence including:

a)Evidence
to the legal regime and the overseas jurisdiction in which the procedure took
place with respect to surrogacy arrangements;

b)Evidence
of the legal regime and the overseas jurisdiction in which the procedure took
place with respect to the rights of the birth mother, and if applicable, of her
husband or de facto partner.

Comment on the guidelines

The comprehensive
guidelines will mean in practice that intended parents will if at all possible
avoid going to the Family Court to obtain orders, because, aside from the risk
of being reported to authorities if they’ve come from Queensland, New South Wales
or the Australian Capital Territory, the approach taken by her Honour will be
expensive, slow and difficult.

In reality, my
thoughts were that intended parents may be more inclined to avoid Thailand and
go, instead to India or the US where there isn’t any requirement to obtain a
parenting order.It is very rare indeed
for Australian intended parents to seek Family Court orders when having
undertaken surrogacy in India or the US. However, the impact of changes in
India is likely to mean the reverse- more Australian intended parents going to
Thailand.

The requirement
for the DNA testing to comply with the Family
Law Regulations will impose a burden on the intended parents who may have
to be tested twice.

The requirement
for the family report writer or Independent Children’s Lawyer to obtain
evidence about the surrogate will necessarily mean that the possibly
substantial costs of that process will have to be met by the intended parents.
This alone may well be in excess of AUD$15,000[26]
or about US$16,000.

The guidelines
are not binding on other judges, but I understand that there may be moves
within the Family Court to create procedural rules along the lines of the
guidelines.

As will be seen
in the discussion in Schone below,
the guidelines as to the appointment of Independent Children’s Lawyers might
not reflect practice in some parts of Australia.

Who
is a parent?

The case also
illustrates the differences of:

·Being an intended parent, as both Mr Ellison and
Ms Solano were;

·Being a biological parent, as Mr Ellison and the
anonymous egg donor were;

·Being the legal parent.

Didn’t
DNA fix it?

A DNA test had
been undertaken to comply with the requirements of the Australian Department of
Immigration & Citizenship, which showed a 99.99999996% probability that Mr
Ellison is the child’s biological father.

The problem was
that the report did not comply with the Family
Law Regulations, which meant that at first blush it was inadmissible.An order by her Honour for a second,
admissible report was not complied with. Ultimately her Honour allowed the
report to be admitted.

Wasn’t
it enough that Mr Ellison was shown as the father on the Thai birth certificate?

In a word – no.

A Thai lawyer
gave evidence that pursuant to Thai law, Mr Ellison had parental
authority.The effect of the expert’s
evidence was that there are no surrogacy specific laws in Thailand. Surrogacy
issues were governed by the Civil
Commercial Code.According to the
Code, a child born of an unmarried woman was deemed to be her legitimate child
unless otherwise provided by law.The
effect of the Code was that the birth mother had sole legal custody of the
children.

However, another
provision of the Code provided that:

“A child born of parents who are not married
to each other is legitimised by the subsequent marriage of the parents, or by
registration made on application by the father, or by a judgment on the Court.”

Mr Ellison was
entitled to apply for registration and /or petition a Thai Court “for
legitimisation of his children”.An
application for registration required both the mother and children’s consents.Where the child is too young to consent
(under the age of 7 years) a father must obtain the Court’s consent on the
child’s behalf.It was explained by the
expert that in that case since the children were too young to give consent, the
legitimisation must be effected by a Judge from the Family Court of Thailand.

The effect of the
successful application by Mr Ellison in Thailand for legitimisation of the
children would have been to granting parental power.His parental rights would be shared equally
with the birth mother in relation to which they would jointly have the right
to:

·Determine the child’s place of residence;

·Punish the child in a reasonable manner for
disciplinary purposes;

·Require the child to do such work as may be
reasonable on his or her ability and condition in life;

·Demand the return of the child from any person
who unlawfully detains the child.

Provision was
made in the Thai Civil Commercial Code
for removal of parental power, either in part or its entirety which is the
mechanism by which Mr Ellison could extinguish the birth mother’s parental power
so that under Thai law he alone had parental power in relation to the
children.An application of this kind
would have had limited prospects of success according to the expert because
Thai courts apparently do not like to deprive parents of their parental power
and will only do so when presented with clear facts of serious misconduct.The evidence did not establish that a
surrogate who relinquished her child to the man whose sperm fertilised the
embryo would by virtue of relinquishment be deprived of her parental power.

Because
Mr Ellison was not a parent under Thai law…

He did not have
the legal ability to authorise the taking of the DNA sample from the
children.This would usually be fatal to
being able to allow the DNA test to be in evidence before the Court.

Luckily
for Mr Ellison and Ms Solano, the test results were admissible

They were very
lucky indeed.

Did
it make a difference the children were born outside Australia?

Section 60H of
the Family Law Act 1975 (Cth) deals
with who is “a parent” under that Act.Section 60HB deals with the recognition of children born from surrogacy
arrangements.Both the Human Rights
Commission and Mr Ellison and Ms Solano submitted to the Court that those
sections didn’t apply because the children were born outside Australia.Justice Ryan did not agree.Her Honour cited at length the guidelines of
the Department of Immigration and Citizenship as to DNA testing of children
born overseas. I note that these guidelines are not the law and that a Federal
Court case, H –v- Minister for
Immigration and Citizenship (2010)[27]
talks about a test -demonstrated intent- as to who and who is not a
parent.

Her Honour
disagreed with the approach of Justice Watts.It appeared critical to her Honour as to whether or not the surrogate
was in a de facto relationship or marriage at the time of conception, then a
partner or husband would have been for Queensland and then Australian law the
father of the children.Luckily for Mr.
Ellison and Ms. Solano, the surrogate at the time of conception was single.The outcome almost certainly would have been
different if she were not.

Wasn’t
Mr Ellison the legal parent due to parentage presumptions?

In short –
no.The Thai birth certificate was not
recognised by the court for that purpose, nor had another court order been
made, nor had Mr Ellison lodged formal documents in Australia acknowledging
paternity.

But
wasn’t Mr Ellison the legal parent?

Yes.The Human Rights Commission told the Court
that Mr Ellison should be declared to be the child’s father:

“It would formalise the legal relationship between
the biological father and the children.The effect of a parenting order would obviously only last until the
children turn 18.The Commission submits
that in cases of this type of such a finding is open on the evidence, then it
should be made because it would have important implications for the rights of
children….”

But
hadn’t what Mr Ellison and Ms Solano done was illegal?

Well, yes, but
the best interests of the child, in the view of Justice Ryan, was a more
important factor. Her Honour disagreed with the previous approach by Justice
Watts who had stated in the earlier cases:

1.The
applicable state law made what the first applicant did illegal;

2.There
was at that time no provision in state law that would allow the recognition of
any relationship between the children and the first applicant;

3.Had
the surrogacy arrangement been altruistic, there is now such a provision that
would allow such recognition;

4.The
first applicant may seek a remedy through adoption legislation; and

5.The
[parenting] orders sought could be made without recognising the first applicant
as the father of the children.

The Human Rights
Commission submitted that although it was open to Justice Watts to adopt the
course he did, in the opinion of the Commission it was not consistent with the
child’s best interests or the International
Convention on the Rights of the Child.The Commission submitted that the first three reasons given by Justice
Watts raised public policy issues.Justice Ryan noted that the matter raised public policy issues namely
the potential for declaration of parentage to potentially subvert in part at
least the spirit of law in Queensland in relation to commercial surrogacy.She said however that the Commission was
demonstrably correct in its submissions that:

“The
Court is faced with having children in front of it and needs to make orders
that are in the best interests of those children, and at that stage it’s probably
too late to ask whether – or to enquire into the legality of the arrangements
that had been made.The Court really
needs to take the children as it finds them.”

Her Honour noted
that there was doubt as to whether the children could have been adopted, but in
any case:

“Lest it be overlooked, irrespective how
State law views the applicant’s actions, the children have done nothing wrong.”

[I might note on
this point that given the structure of Queensland law and practice, adoption
would have been next to impossible.]

The Human Rights
Commission said that in light of the International
Convention , the rights of the child are important. A declaration was made
of parentage in favour of Mr Ellison.Justice Ryan found that by virtue of the status of the Sex Discrimination Act, Federal
legislation overrode the relevant provision of the Queensland Status of Children Act, Mr Ellison was
the father as a matter of law.

Significantly,
Her Honour did not find who was the mother of the child. Under Australian law
it is questionable as to who was the legal mother. Was it Ms Solano, the egg
donor or the surrogate? I don’t know.

It is
questionable whether Mr Ellison was the father of the child for other purposes,
such as for inheritance issues.

Justice Macmillan
of the Family Court considered the case of a Victorian couple who had undertaken
surrogacy in Thailand. The child had been conceived from the Australian man’s
sperm and from an egg of an anonymous egg donor. It appeared that the surrogacy
may have been of a commercial nature, but no direct benefit was paid to the
surrogate. Her Honour took a different approach to that of Justice Ryan:

“Notwithstanding that the first named
applicant is the genetic father of F, it does not follow that he is necessarily
a parent for the purposes of the Family Law Act 1975. There is no definition of
a parent in the Act save and except that in s 4 (1) ‘parent’, when used in Part
VII in relation to a child who has been adopted, is defined as “an adoptive
parent of the child”. That is clearly not relevant to this case. To the
contrary ss 60H(1)(a)–(c) provide that where

...a child is born to a woman as a result of
the carrying out of an artificial conception procedure while the woman was
married to, or a defacto partner of, another person (the other intended parent)
[and certain other conditions are met, then]... whether or not the child is
biologically a child of the woman and of the other intended parent, for the
purposes of this Act ... the child is a child of the woman and the other
intended parent and s 60H(1)(d) provides that where ...a person other than the
woman and the other intended parent provided genetic material— the child is not
the child of that person. The first named applicant in this case was not the
husband or defacto partner of the respondent. Whilst he provided genetic
material, the child is not his child for the purposes of the Act.

This does not however preclude the applicant
husband and wife seeking parenting orders with respect to F.”

Her Honour then
considered what orders ought to be made:

“The paramount consideration when making a
parenting order is the best interests of the child or children the subject of
that order (s 60CA). In determining what is in that child or children’s best
interests, the Court must consider both the primary and additional
considerations set out in s 60CC(2) and (3) of the Act. The analysis of those
statutory considerations of what is in the best interests of the particular
child in the particular circumstances of the case must be made in a way that is
consistent with the objectives and the principles underlying those objectives.
The primary considerations directly take up the first two of those objectives.

Clearly in this case it will not be possible
for the respondent, and nor does she intend, to have any meaningful involvement
in F’s life. To the contrary, she has entered into a contract by which she
relinquishes any parental rights she may have had and consents to the orders
sought by the applicants.

Whilst F may not have the benefit of the
meaningful involvement of the respondent who gave birth to her, she will have
the ongoing and meaningful involvement of two loving and caring parents, one of
whom is her genetic parent, and the other his wife, who, it is clear to me, are
totally committed to ensuring her best interests. From my observations of them
in Court, the very depth of their emotions clearly demonstrates the strength of
their love and commitment to this little girl.

Whilst the applicants were concerned that my
request for information about F and their capacity to provide for her care
indicated that I was treating them differently from other parents because of
the surrogacy, I can only repeat what I said to them during the hearing, that I
am required to consider F’s best interests as paramount and that I could not do
so in the absence of evidence. I am however comforted by the affidavits that
they filed, prepared by them with the assistance of the Duty Solicitor.

The applicant husband is 38 years of age.
The applicant wife is 37 years of age. They were married in May 2010 and for
medical reasons have no other children. The applicant husband is in good
health. The applicant wife has osteoarthritis and may need to have both knees
reconstructed.

The applicant husband works full time as a
public servant and earns approximately $70,000 per annum. The applicant wife
works on a casual basis from home in a design field and has done so for seven
years. She is presently caring for F on a full time basis with the assistance
of the applicant husband and his mother if necessary. They presently rent
accommodation in Melbourne.

The applicant husband has extended family in
Melbourne, with whom they have regular contact, including his parents and two
brothers, one of whom is married with a child. They currently do not have
contact with the applicant wife’s family in New South Wales as they have
religious objections to surrogacy. The applicant wife remains open to the
possibility of re-establishing the relationship with her family.

The applicant husband is of Burmese descent,
which is one of the reasons the applicants chose Thailand as the place where F
would be born, and they intend to raise her with an awareness and appreciation
of her Burmese heritage.

The applicant husband and wife have
demonstrated a thoughtful and caring attitude toward their responsibilities as
parents and have clearly demonstrated a capacity to meet F’s needs on an
ongoing basis.

They have already given consideration to the
options available for her education, they have put in place arrangements for
her care if anything were to happen to them, and I was impressed by their
sensitivity to the issue of how in due course they will explain to F the
circumstance of her birth. Whilst F is young, I have little doubt that she will
have the benefit of a meaningful relationship with both the applicant husband
and wife in a secure and loving environment.

When making a parenting order I am required
under s 61DA(1) to apply the presumption that it is in the child’s best
interests that her parents have equal shared parental responsibility. It would
appear that whilst the respondent may technically be F’s parent, she has
relinquished any parental rights and consents to orders that the applicant
husband and wife have equal shared parental responsibility for F. In those
circumstances I am satisfied that the presumption is rebutted as it would not
be in F’s best interests in these circumstances to require the applicants to
share parental responsibility with the respondent.”

Mr and Mrs Schone
were a Victorian couple who had undertaken commercial surrogacy in India. Only
Mr Schone’s name was on the birth certificate. They applied to the Federal
Magistrates Court for parenting orders. Federal Magistrate Phipps transferred
the matter to the Family Court, noting the decisions of Justices Ryan and
Macmillan. His Honour also stated:

“If I was to proceed with this case, I would
be faced with conflicting decisions by Family Court of Australia judges.

The other matter is the complications
involved. If I follow Ryan Js decision about procedure that would include the
appointment of an Independent Children’s Lawyer. There is nothing in the
material to suggest that this case would satisfy the requirements of the
Victoria Legal Aid Commission for them to appoint an Independent Children’s
Lawyer. There are three matters that Victoria Legal Aid require: Allegations of
physical, sexual or psychological abuse; the conduct of the parties is alleged
to be anti-social; or there are issues of significant medical or psychological
illness or personality disorder. This is not such a case. The contrary appears
to be the case.

If I was to make an order in this court for
the appointment of an Independent Children’s Lawyer, it is likely that it would
not be made and funded by Victoria Legal Aid. For these reasons, the matter
should be transferred to the Family Court of Australia.”

Blake
and Another [2013] FCWA1

Western Australia's Family Court has
recently allowed an adoption by a gay co-father of twins conceived through
surrogacy in India. Crisford J could only allow the adoption to proceed if she
found that Mr Blake's partner, Mr Marston was not only the genetic father of
the child, but the legal father of the child.

Mr Blake sought a step-parent adoption of the children. The twins were born as
a result of a surrogacy procedure which took place at a fertility clinic in
Mumbai. The procedure was carried out by fertilising eggs from an
anonymous egg donor with Mr Marston’s sperm. The fertilised eggs were then
implanted in a surrogate, Mrs S, who gave birth to the twins.
Mrs S, her husband and Mr Marston entered into a surrogacy agreement in
December 2009 which was binding under Indian law. In accordance with that
agreement, Mrs and Mr S relinquished all their rights to any children born of
the surrogacy procedure, and covenanted not to engage in any legal proceedings
in relation to their rights or custody of the children. The surrogacy agreement
declared that Mr M is the ‘intended parent’ of the children. The surrogacy
agreement makes no mention of Mr Blake.

Upon their birth in 2010 Mrs S gave the children into the care of Mr Marston
and Mr Blake, who visited India for that purpose. Mr Marston was named as the
father of the children on their Indian birth certificates. No mother is named
on the birth certificates.
Mr Marston then applied for Australian citizenship for both children on the
basis of their parentage. He provided DNA samples from the children and himself
so that a parentage testing procedure could be performed at a laboratory in
Sydney. The test results confirmed that Mr M has a 99.9% chance of being the
"genetic parent" of the children.

The Department of Immigration and Citizenship registered each child as an
Australian citizen by descent on 7 August 2010. After the decision Mr
Marston and Mr Blake returned to Australia with the children. Both children
have lived with Mr Marston and Mr Blake since their birth. Mr Marston is an
Australian citizen and Mr Blake is a Canadian citizen with permanent residency
status in Australia.

Justice
Crisford noted that there was a different factual and legal matrix in this
case. For one, it was not being decided under the Family Law Act, but the
Adoption Act of Western Australia.

To be eligible to adopt, Mr Blake had to fulfil the definition of a
‘step-parent’ for the purposes of a step parent adoption, and therefore Mr
Marston would have to be defined as either a ‘birth parent’ or ‘adoptive parent’
of the children.

Artificial Conception Act

Her Honour found that Mr Marston would NOT be a parent for the purposes of the Artificial
Conception Act. Section 6A of the Artificial Conception Act 1985
(ACA) refers to the female partner of a woman who gives birth and has no
application here. The rules relating to parentage under the ACA would
seem to exclude Mr Marston from being the father. Section 7 states:

“(2) Where -

(a) a woman becomes pregnant in consequence of an artificial fertilisation
procedure; and

then for the purposes of the law of the State, the man referred to paragraph
(b) -

(c) shall be conclusively presumed not to have caused the pregnancy; and

(d) is not the father of any child born as a result of the pregnancy.”

An
artificial fertilisation procedure is defined for the purposes of the ACA as
any:

Her Honour, finding that IVF had been used, found therefore that Mr Marston was
not the father under the Artificial Conception Act. This is
entirely consistent with the questions posed in 2011 by Justice Watts.

Ordinary meaning

Her Honour went on to say that the court could consider who was a
"father" or "parent" in the ordinary meaning of the
word.
Mr Marston declared to the Department of Immigration and Citizenship
that he was the father of the children, after a DNA test found that he was
99.9% likely to be the father.
Her Honour stated:

"Although the Court is satisfied that Mr Marston has
established on the balance of probabilities that he is the biological or
genetic father of the twins, it does not automatically follow that the state
law recognises either him as a parent or Mr Blake as a step-parent.... There are certified copies of overseas birth certificates showing Mr
Marston as the father. The certificates were accepted by the Department of
Immigration and Citizenship in assessing the issue of citizenship and the
provision of passports. One overarching consideration is that since July 2010 Mr Marston and Mr
Blake have acted as parents to these children. They have fulfilled that role
for over two years without input from any other person who might be seen as a
parent. .. To suggest that Mr Marston is anything other than a parent or a
father within its ordinary meaning is to turn a blind eye to the reality of
"family" in present day society. It is also turning a blind eye to
the reality of the situation presently before the Court. The objective facts
surrounding the birth and the manner in which various agencies have treated
those circumstances coupled with the fact of the genetic father acting in that
role since the birth of the twins points to the use of an expanded definition
of parent. To adopt any other interpretation would serve no purpose in addressing any
public policy issues if, indeed, any exist. It would serve no purpose in
enhancing the future welfare and best interests of these children.As the Australian Human Rights Commission submitted in Ellison
"the Court really needs to take children as it finds them". There is
no valid reason to disadvantage children of surrogacy arrangements."

Her
Honour then went on to make the proposed adoption order, finding that it would
be in the interests of the children, including their identity and their long
term welfare.Comment
Although the decision is limited to the particulars of Western Australia's Adoption
Act, there are some significant features of this case:

The
court looked at the reality of who is a parent. If a person can be the
genetic parent of a child, recognised on the child's birth certificate as
the parent, the mother and her husband having relinquished parenting by
virtue of the surrogacy contract, with the father and his partner having
undertaking the parenting for the children since their birth for two
years, why would the court not recognise the reality?

The
provisions of the Artificial
Conception Act are much like the Status
of Children Act (NSW) Watts J said: "I note that Status of
Children Acts are generally more applicable to the protection of a sperm
or egg donor in more conventionally assisted reproductive
procedures."

By
looking at the reality of the situation, her Honour has possibly opened
the door for more cases in which an intended father may be considered to
be the father of a child.

It
was only because of the position of the WA Department for Child Protection
that there was no investigation of the views of the surrogate or her
husband. Otherwise it is likely that in line with the decision in Ellison
such a costly and slow procedure would have occurred. Mr B and Mr M got
lucky.

This
case is an illustration of how the law can cater for unintended cases. The
Adoption Act was intended to apply to home grown adoptions.
Accordingly there would be an adoption plan. Her Honour saw that in light
of the surrogacy contract there was no need for that.

This
case is also an illustration of how in other States such a step might not
be taken. In Queensland, for example, adoption by same sex couples is
banned, which also means that a decision like this could never occur
under current laws in Queensland.

Finally,
this case is yet another illustration about why there needs to be reform
about who is or who is not a parent through a surrogacy arrangement,
and some common sense, as seen in this case, is welcome. There have
been a series of cases in the Family Court in which different approaches
were taken about who is or is not a parent. To have a clear legislative
framework to acknowledge that if someone is recognised by the Department
of Immigration and Citizenship as a "parent" that they are also
recognised as being parents under the Family
Law Act and relevant State legislation such as the Artificial Conception Act, would seem
a common sense and long overdue step.

Proposed changes in Queensland

In June 2012 the
Attorney General Jarrod Bleijie announced to Parliament in the debate about
civil partnership that Queensland would be changing the Surrogacy Act along the lines of those previously proposed by
Lawrence Springborg in 2009.The
Attorney stated:

“The second issue is
surrogacy.In this debate and in the
correspondence that the government
received with regard to this debate there was much talk about mixing these
issues with surrogacy.I can also advise
the House tonight that the government will be changing the surrogacy laws in
the future.We will be introducing
amendments similar to those introduced by the honourable member for Southern
Downs when he was the shadow minister.We will be repealing the provisions in the Surrogacy Act that deal with
same-sex couples, de factos of less than two years and singles.That was a clear commitment given many years
ago when that original debate took place.The government will proceed to amend the Surrogacy Act.

What we are
also going to deal with is the other issue that the bill dealt with and that is parenting presumptions and parentage
orders.Honourable Members will recall
at the time that the member for
Southern Downs supported two lesbian women, who had a natural birth, both having parentage orders.I make it absolutely clear that going forward the government will be amending the
provisions around altruistic surrogacy and
the Surrogacy Act to repeal the provisions with respect to same-sex couples, de
factos of less than two years and
singles.That is a policy position we
took years ago when we debated the
Surrogacy Act.”

Since then, there
have been no changes to the Surrogacy Act, in August the Attorney’s office
wrote to me setting out four points:

1.Lesbian co-mothers are to continue to be
recognised.

2.The government will not be bringing in a
new criminal offence if intended parents are same sex couples, single or in a
heterosexual de facto relationship of less than 2 years.

3.Doctors will still be able to treat.

4.The definition of “intended parent” will
exclude same sex couples and heterosexual de facto couples of less than two
years.

If the changes
proceed, it is unlikely, at least for people living in Brisbane, that they will
be effective.What the changes would
mean for someone living and working in Brisbane would be:

·They
would move to Casuarina Beach, Tweed Heads or Banora Point, and continue to
commute to Brisbane.

·As
the intended parents would therefore be residing in New South Wales, the
surrogacy arrangement would be a New South Wales surrogacy arrangement.

·Treatment
would still be carried out on the Gold Coast or in Brisbane.

·The
child would be born in Brisbane or the Gold Coast and registered with the
Registrar of Births, Deaths and Marriages.

·An
order would then be made by the Supreme Court of New South Wales.

·That
order would then be given effect by the Registrar of Births, Deaths and
Marriages in Queensland, thereby recognising the intended parents as parents on
the Birth Register.

It is also my
view that the Commonwealth Human Rights
and Anti-Discrimination Bill would if it passes both Houses of Parliament
and survives a High Court challenge overrule such discrimination.

Family Law Council

The then Attorney
General Nicola Roxon has given the Family Law Council the task of enquiring as
to how the Family Law Act can be made to synchronise with the various State
Surrogacy Acts.The council is due to
report at the end of the year.Submissions are due on 1 May 2013.

[1]Stephen Page is a partner of Harrington Family
Lawyers, Brisbane. He is an accredited family law specialist.He is an international representative of the
American Bar Association Assisted Reproductive Technology Committee Executive Council,
a member of the International Surrogacy Forum and a member of the Fertility Society
of Australia.He is the author of the
Australian Surrogacy and Adoption Blog: http://surrogacyandadoption.blogspot.com.au

2016 winner of a Queensland Law Society Equity and Diversity Award: The Australian Gay and Lesbian Law Blog: " (a)strong and pioneering commitment to the rights of and interests of LGBTI people in Australia" Queensland Law Society May, 2016

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.